B-169366, DEC 29, 1971, 51 COMP GEN 380

B-169366, DEC 29, 1971, 51 COMP GEN 380

PAY - ABSENCE WITHOUT LEAVE - CIVIL ARREST - CONFINEMENT - TRIAL AND APPELLATE REVIEW AN ARMY SERGEANT WHILE CONFINED BY UNITED STATES MILITARY AUTHORITIES IN A NAVAL CORRECTIONAL CENTER IN JAPAN FOR THE JAPANESE GOVERNMENT DURING THE PERIOD OF HIS TRIAL AND APPELLATE REVIEW ON THE CHARGE OF MURDER WHO PERFORMED NORMAL PRISON-TYPE DUTIES, NONE OF WHICH WERE HIS MILITARY SPECIALTY OR EQUAL TO THE NORMAL DUTIES OF HIS GRADE, IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF CONFINEMENT AS ARMY REGULATIONS, ALTHOUGH AUTHORIZING THE EMPLOYMENT OF PRISONERS IN A VARIETY OF CAPACITIES, PROHIBITS PAYMENT WHILE SO EMPLOYED, AND RULE 8, TABLE 1-3-2, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT WHEN CONFINED FOR A FOREIGN CIVIL OFFENSE FOR WHICH A MEMBER HAS BEEN CHARGED OR INDICTED BY A FOREIGN COURT, HE IS NOT ENTITLED TO PAY AND ALLOWANCES EXCEPT FOR A PERIOD OF LEAVE AND BAQ UNDER PARAGRAPH 10312 OF THE MANUAL, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

TO MAJOR H. A. MACCALLUM, DEPARTMENT OF THE ARMY, DECEMBER 29, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 19, 1971, WHICH WAS FORWARDED HERE BY LETTER DATED NOVEMBER 9, 1971, OF THE OFFICE OF THE COMPTROLLER OF THE ARMY, DACA-FIS-PP, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF PAY AND ALLOWANCES TO A SERGEANT WHILE HE WAS CONFINED BY UNITED STATES MILITARY AUTHORITIES AT THE NAVAL CORRECTIONAL CENTER, YOKOSUKA, JAPAN, FOR THE JAPANESE GOVERNMENT DURING THE PERIOD OF HIS TRIAL AND APPELLATE REVIEW ON THE CHARGE OF MURDER. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-A-1136 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT THE SERGEANT WAS INDICATED BY THE JAPANESE GOVERNMENT FOR MURDER ON FEBRUARY 14, 1970, AND SENTENCED TO 12 YEARS AT HARD LABOR ON FEBRUARY 19, 1971. THE JAPANESE LEGAL AUTHORITIES ALLOWED HIM TO REMAIN IN CUSTODY OF THE U.S. FORCES DURING THE PERIOD OF HIS TRIAL AND APPELLATE REVIEW, IN LIEU OF CONFINING HIM IN A JAPANESE FACILITY. WE UNDERSTAND THAT HE IS NOW CONFINED IN A JAPANESE FACILITY SERVING A 12-YEAR SENTENCE FOR MURDER.

DURING THE PERIOD THAT THE SERGEANT WAS CONFINED BY THE UNITED STATES AUTHORITIES HE PERFORMED NORMAL PRISONER-TYPE DUTIES, NONE OF WHICH COULD BE CONSTRUED AS BEING WITHIN HIS MILITARY SPECIALTY OR EQUAL TO NORMAL DUTIES OF HIS GRADE. THE NAVAL CORRECTIONAL CENTER REPORTED THAT AFTER AN INDOCTRINATION PERIOD FROM APRIL 28, 1970, TO MAY 6, 1970, HE WORKED AT NUMEROUS TASKS WITHIN THE CENTER FROM MAY 6, 1970, TO DECEMBER 14, 1970, INCLUDING PAINTING, GARDENING AND CARPENTERING, AND THAT FROM DECEMBER 15, 1970, HE OPERATED THE CORRECTIONAL CENTER LAUNDRY FOR THE PRISONERS. NONE OF THESE DUTIES COULD BE CONSTRUED AS PERFORMING SERVICES IN HIS MILITARY SPECIALTIES. SINCE YOU FEEL THAT THERE IS A DEFINITE DIFFERENCE BETWEEN PERFORMING DUTIES NORMALLY REQUIRED OF A PRISONER AND BEING USEFULLY EMPLOYED IN THE INDIVIDUAL'S MILITARY SPECIALTY, YOU REQUEST A DECISION AS TO WHETHER HE MAY BE PAID PAY AND ALLOWANCES DURING THE PERIOD OF HIS CONFINEMENT AT THE NAVAL CORRECTIONAL CENTER.

YOUR DOUBT ARISES FROM THE FACT THAT TWO NAVY PRISONERS AND ONE MARINE PRISONER WHOSE SITUATIONS ARE SIMILAR TO THE SERGEANT'S ARE IN A PAY STATUS SINCE THEIR RESPECTIVE COMMANDERS HAVE CERTIFIED THAT THEY ARE USEFULLY EMPLOYED IN ACCORDANCE WITH PARAGRAPH 5C, COMNAVFORJAPAN INSTRUCTION 1640.7B, DATED OCTOBER 15, 1969. THAT INSTRUCTION PROVIDES THAT UPON DETERMINATION BY THE COMMANDING OFFICER THAT A MEMBER, OTHER THAN A NORMAL CONFINEE, WHO IS DETAINED WITHIN THE BRIG COMPOUND, BUT IS IN FACT USEFULLY EMPLOYED AND CAN BE REGARDED AS PERFORMING DUTIES OF HIS RATE, IS ELIGIBLE FOR PAY AND ALLOWANCES.

IN DECISION 36 COMP. GEN. 173 (1956) WE HELD THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS (1) ARRESTED BY THE JAPANESE CIVIL AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A CIVIL OFFENSE, (2) RELEASED TO THE CUSTODY OF THE U.S. MILITARY AUTHORITIES ON CONDITION THAT HE WILL BE MADE AVAILABLE FOR TRIAL BY THE JAPANESE COURT UPON THE REQUEST OF THE JAPANESE, (3) CONFINED BY THE U.S. MILITARY AUTHORITIES PENDING RELEASE TO THE JAPANESE FOR TRIAL, AND (4) TRIED AND CONVICTED BY THE JAPANESE COURT, MUST BE REGARDED AS ABSENT WITHOUT LEAVE DURING THE PERIOD OF HIS PRETRIAL CONFINEMENT BY THE MILITARY AUTHORITIES AND IS NOT ENTITLED TO PAY FOR SUCH PERIOD UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

IN OUR DECISION B-132595, AUGUST 26, 1957, WE HELD THAT WHILE A MEMBER OF THE UNIFORMED SERVICES WHO IS RESTRICTED TO HIS BASE, IN A SENSE, IS BEING CONFINED BY THE MILITARY AUTHORITIES, THE TERM "CONFINEMENT" WAS USED IN 36 COMP. GEN. 173 (1956) AS HAVING REFERENCE GENERALLY TO PERIODS OF ACTUAL INCARCERATION AND DOES NOT INCLUDE PERIODS WHEN THE MEMBER IS IN A DUTY STATUS WHILE AWAITING CIVIL TRIAL EVEN THOUGH HIS AREA OF MOVEMENT IS RESTRICTED DURING SUCH PERIODS. IN 37 COMP. GEN. 228 (1957), CITED AS REFERENCE (C) IN THE INSTRUCTION REFERRED TO ABOVE, WE HELD THAT A NAVY ENLISTED MAN WITH THE RATE OF YEOMAN 3RD CLASS, WHO, AFTER EXPIRATION OF HIS ENLISTMENT AND WHILE RESTRICTED TO HIS STATION AWAITING APPELLATE REVIEW OF HIS COURT MARTIAL SENTENCE WAS ASSIGNED TO THE POST CONTROL OFFICE TO "PERFORM DUTIES OF HIS RATE," WAS ENTITLED TO PAY AND ALLOWANCES IF SUCH DUTY WAS DIRECTED BY COMPETENT AUTHORITY AND THE ASSIGNMENT COULD BE REGARDED AS A RESTORATION TO DUTY.

OUR DECISION B-169366, DATED APRIL 8, 1970, CITED BY YOU, INVOLVED AN ARMY ENLISTED MEMBER, WHO, WHILE ON LEAVE FROM HIS DUTY STATION IN GERMANY, WAS APPREHENDED IN SPAIN AND SENTENCED TO 6 YEARS CONFINEMENT. HE WAS RELEASED TO UNITED STATES NAVAL AUTHORITIES AT ROTA, SPAIN, PENDING HIS APPEAL FOR A PARDON, RELIEVED FROM ATTACHMENT TO THE GERMAN FIELD STATION AND ATTACHED TO THE U.S. NAVAL STATION, ROTA, SPAIN, FOR ADMINISTRATIVE PURPOSES. IT WAS STATED THAT HE WAS PERFORMING MILITARY DUTIES AT ROTA, SPAIN.

WE SAID THAT WHILE SOME QUESTION ARISES AS TO HOW AN ENLISTED MAN OF THE ARMY COULD BE DISCHARGING THE OBLIGATIONS OF HIS ENLISTMENT CONTRACT WHILE ATTACHED TO A NAVAL INSTALLATION, THE MISSION OF THE UNIT TO WHICH HE WAS ASSIGNED BEFORE GOING TO SPAIN, AS WELL AS HIS MILITARY GRADE, MIGHT WARRANT A CONCLUSION THAT ASSIGNMENT TO THE NAVAL INSTALLATION WAS FOR THE CONVENIENCE OF THE GOVERNMENT, PROVIDED THE NAVY HAD RECEIVED A BENEFIT FROM HIS SERVICE COMMENSURATE WITH HIS GRADE AND MILITARY SPECIALTY AS DISTINGUISHED FROM THOSE DUTIES NORMALLY REQUIRED OF A MILITARY PRISONER. WE HELD THAT, EXCEPT FOR ANY PERIODS OF ACTUAL CONFINEMENT BY THE MILITARY AUTHORITIES, THE MEMBER MIGHT BE ALLOWED PAY AND ALLOWANCES FOR ANY PERIODS DURING WHICH HE RENDERED MILITARY DUTY APPROPRIATE TO HIS GRADE OF PRIVATE FIRST CLASS.

PARAGRAPH 10316A, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT PAY AND ALLOWANCES ACCRUE TO A MEMBER IN MILITARY CONFINEMENT EXCEPT, AMONG OTHER SITUATIONS, WHEN CONFINED BY MILITARY AUTHORITIES FOR CIVIL AUTHORITIES. RULE 8, TABLE 1-3-2, DODPM, PROVIDES THAT WHEN A MEMBER IS ABSENT FROM DUTY IN CONFINEMENT BY MILITARY AUTHORITIES FOR A FOREIGN CIVIL OFFENSE, AND HAS BEEN CHARGED OR INDICTED BY THE FOREIGN COURT, HE IS NOT ENTITLED TO PAY AND ALLOWANCES EXCEPT FOR THAT PART OF THE PERIOD THAT IS COVERED BY LEAVE AND BAQ UNDER PARAGRAPH 10312, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

PARAGRAPH 3-3C(2), ARMY REGULATIONS 190-4, PROVIDES THAT PRISONERS WILL BE EMPLOYED IN THE MANNER PRESCRIBED IN THE ARMY REGULATIONS GOVERNING THE PARTICULAR TYPE OF CONFINEMENT FACILITY IN WHICH THEY ARE CONFINED. PARAGRAPH 3-3C(5) PROVIDES THAT PRISONERS MAY BE EMPLOYED IN WORK ASSIGNMENTS IN EXCHANGES, CLUBS, OR COMPARABLE WORK IN OTHER SERVICE- REGULATED ACTIVITIES ON A MILITARY INSTALLATION, PROVIDED SUCH EMPLOYMENT DOES NOT VIOLATE PRACTICES PROHIBITED BY THE REGULATION, AND MAY BE USED TO PERFORM LOCAL MAINTENANCE AND MANAGEMENT OF FACILITIES (AR 37-100) AND MAJOR CONSTRUCTION ACTIVITIES IN ACCORDANCE WITH AR 420 13, SUBJECT TO PRESCRIBED RESTRICTIONS.

PARAGRAPH 15A, ARMY REGULATIONS 420-13, PROVIDES THAT MILITARY PRISONERS IN CONFINEMENT MAY BE USED ON REAL PROPERTY MAINTENANCE ACTIVITY WORK ON THE INSTALLATION ON WHICH THE CONFINEMENT FACILITY IS LOCATED, SUCH AS MAINTENANCE AND REPAIR OF BUILDINGS, STRUCTURES, PLANTS AND SYSTEMS, THE OPERATION OF UTILITIES, PLANTS AND SYSTEMS AND THE FURNISHING OF ESSENTIAL SERVICES. IT IS ALSO PROVIDED THAT NO COMPENSATION WILL BE PAID FOR OR TO MILITARY PRISONERS SO EMPLOYED.

IT IS OUR VIEW THAT DURING THE PERIOD THE SERGEANT WAS CONFINED IN THE NAVAL CORRECTIONAL FACILITY HE WAS NOT IN A DUTY STATUS PERFORMING THE DUTIES OF HIS GRADE BUT WAS PERFORMING LOCAL MAINTENANCE AND MANAGEMENT WORK SUCH AS MAY BE REQUIRED OF PRISONERS. ACCORDINGLY, HE IS NOT ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF SUCH CONFINEMENT.

THERE BEING NO AUTHORITY FOR PAYMENT OF THE VOUCHERS FORWARDED WITH YOUR LETTER, THEY WILL BE RETAINED HERE.